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Online edition of India's National
Newspaper
Sunday, February 15, 2009
With Palestine accepting the
International Criminal Court’s jurisdiction, Israel should realise
there is a price to pay for committing war crimes.
Six years after it was established and
a week after the first trial of an alleged war criminal Thomas
Lubanga from DR Congo began with much fanfare, the International
Criminal Court is confronting a serious existential question. Will
it be a tribunal where only black and brown men are to be
prosecuted? Or will criminals from the ‘civilised’ western world
also be arraigned before it? The question is not a philosophical or
merely moral one. Earlier this month, Pr esident Mahmoud Abbas of
Palestine wrote to the ICC accepting its jurisdiction over crimes
committed on his country’s territory. What this means is that
Israel’s leaders and military commanders could ultimately be
prosecuted for war crimes committed by the Israeli armed forces
during their savage attack on the people of Gaza from December 27,
2008 to January 18, 2009.
Israel’s aggression led to the death
of 1,300 Palestinians, most of them non-combatants. Children alone
accounted for nearly a third of the victims. International human
rights groups have accused Tel Aviv of committing serious war crimes
by using weapons like white phosphorous in the midst of civilians,
targeting civilian buildings and infrastructure, and preventing
humanitarian aid and medical relief from reaching the victims. The
U.N. High Commissioner for Human Rights, Navi Pillay, has called for
an independent investigation and even President Barack Obama’s
representative at the U.N., Susan Rice, said last month that
Washington “expects Israel will meet its international obligations
to investigate” these allegations.
In response to mounting pressure,
Israel has said, laughably, that it will conduct an internal probe.
But after getting free pass from the world all these years, Tel Aviv
is feeling rattled. Israeli military commanders involved in
Operation Cast Lead have been advised against travelling abroad,
especially to Europe, where universal jurisdiction norms have
already led to the opening of a criminal case in Spain stemming from
an earlier war crime in the Gaza. Media censorship has also been
invoked to ban journalists from naming Israeli officers involved in
the war lest they be linked to specific war crimes and prosecuted
abroad.
Apart from the piecemeal and
politically difficult use of universal jurisdiction, there are two
ways of holding Israeli leaders and commanders legally responsible
for war crimes committed in Gaza. The U.N. General Assembly can
establish an International Criminal Tribunal for Israel (ICTI) under
powers granted to it by Article 22 of the U.N. Charter. The ICTI’s
mandate would be more or less similar to the ad hoc courts
established by the Security Council in the 1990s to deal with war
crimes in Rwanda and the former Yugoslavia. Alternatively, an
already established tribunal like the ICC could handle the matter.
Unlike the International Court of
Justice (ICJ), which deals with disputes between states, the ICC is
a court where individuals are brought to book. The court has
jurisdiction over serious cases which occur on the territory of a
state party or where the accused individual is a citizen of a state
party. The UNSC also has the power to send a case to the ICC,
something it did in 2005 when the Darfur matter was referred to
prosecutors despite Sudan not accepting the court’s mandate.
But with Palestine now accepting the
ICC’s jurisdiction, individuals from any country, including Israel,
could be prosecuted for war crimes committed within the Palestinian
territory regardless of whether their own country has ratified the
court’s statutes or not. Though 108 countries have joined the ICC,
key states like Israel, the United States, India and China remain
outside the tent. While this protects their citizens from potential
arraignment at The Hague for serious violations of international
humanitarian law committed on their own soil, there is no immunity
if war crimes are committed on the territory of a state accepting
ICC jurisdiction. It is on this basis that President Abbas has asked
the court to open an investigation into Israeli crimes in Gaza
during its recent aggression.
ICC prosecutor Luis Moreno-Ocampo has
said an investigation will only be launched once the legal question
of jurisdiction is settled. “It is the territorial state that has to
make a reference to the court. They are making an argument that the
Palestinian Authority is, in reality, that state,” he was quoted by
The Times as saying. On their part, Israeli officials say that since
Palestine is not a “state,” President Abbas’ submission is legally
worthless.
The international law of recognition
is complex but the existence of Palestine as a state and nation with
the same rights of self-determination and sovereignty as other
nations cannot be disputed. The State of Palestine was proclaimed on
November 15, 1988 by the Palestine National Council in its ‘Algiers
Declaration.’ Following this proclamation, dozens of countries,
including India, China and Russia extended formal diplomatic
recognition to it. And on December 15, 1988, the U.N. General
Assembly voted to adopt Resolution 43/177 acknowledging the
proclamation and granting the new state observer status. As
Professor Francis A. Boyle has argued, the UNGA’s recognition of the
new state of Palestine “is constitutive, definitive and universally
determinative.” In December 2003, when the ICJ invited written
submissions from states for its advisory opinion on the legality of
the wall Israel was building in occupied Palestinian territory, it
wrote to Palestine as well.
Of course, international recognition
for Palestine did not then and does not now mean its state enjoys
the attributes of independence. But the primary reason for this is
that Palestine is under military occupation by Israel, an occupation
that the U.N. and the world recognise to be illegal. Today,
Palestine exists, its people and territory exist, and the capacity
of its state to enter into international relations is attested to by
the formal diplomatic relations more than 100 countries have
established with it.
The 20th century is full of examples
of states continuing to exist despite their territory being
occupied. The Nazi conquest of Poland or France, for example, led to
the establishment of governments-in-exile that were no more
legitimate than what the Palestinian people, through their struggle
for self-determination, gave rise to. Following the Oslo Accords,
the Palestinian authority returned from exile to discharge its
functions under conditions of occupation in the hope that a
negotiated transition to an end to the Israeli occupation would be
possible. But the fact of military occupation can never extinguish
the rights of a people to statehood, a right recognised by the
League of Nations as far back as 1919.
Wilful flouting
As an occupying power, Israel has
certain obligations under international law and international
humanitarian law, obligations it has been wilfully flouting
especially by seizing land for settling its own citizens. In 2005,
it effected a withdrawal of its citizens and soldiers from Gaza
while maintaining full and effective control over all entry and exit
points. At the time, Tel Aviv unilaterally asserted it had “ended”
its occupation of Gaza and would no longer be responsible for the
well-being of its people as the occupying power. This cynical and
astonishing claim was subsequently upheld in 2008 by the Israeli
High Court of Justice in the Gabber case.
By withdrawing from Gaza, Israel
sought to rid itself of its obligations as an occupying power under
the Geneva Conventions and as a belligerent occupant under the 1907
Hague Convention. And now, by claiming that Palestine is “not a
state,” it wants to escape liability from the one international
instrument that can pin responsibility on its leaders for their
wanton violations of the laws of war, namely the ICC.
Why should the Palestinians be denied
the protection of an international court expressly set up to provide
justice to those who have no other forum to turn to, especially when
their internationally recognised authority voluntarily submits its
territory to its jurisdiction? If occupation extinguishes a state’s
right to international protection, this would make a mockery of
international law and of the ICC’s raison d’etre. Tomorrow, if
Ethiopia occupies Eritrea and commits war crimes, will the
vanquished Eritrean national authority not have the right to assign
jurisdiction to the ICC to investigate crimes committed by the
occupying power? Even if there is still a dispute with Israel over
the precise frontiers of the West Bank, Israel has itself officially
and legally washed its hands of the Gaza Strip. There can be no
dispute over the right of the Palestinian Authority to ask the ICC
to investigate war crimes committed there.
The Palestinian referral will not
establish a precedent for other aggrieved peoples to “refer”
themselves to the ICC and undermine the sovereignty of states. There
is, today, no country other than Palestine which claims to speak for
the people of Gaza. The ICC must take up the investigation of
Israeli war crimes there with utmost urgency. Its credibility is at
stake.
If the prosecutor is unwilling to act,
the UNSC should refer the case to him. The question President Obama
needs to ask is this: If the court is competent to try Sudanese
officials for Darfur, why shouldn’t it be asked to look at Israel’s
actions in Gaza as well? Of course, the reality is that the U.S.
will likely block any such attempt at the Security Council. Which is
why the proposal for the General Assembly to set up an ICTI should
also be energetically pushed by the international community. |
